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Right to Claim Maintenance

Under the ambit of personal laws in India there is a very important role of governing the relationship between a wife and a husband. Under these laws there is specific focus on the aspect of maintenance after divorce. The term 'maintenance' includes a wide range of things for living such as food, clothes, residence and the things necessary for the comfort and status in which the person is expected to live. Maintenance may be allotted to dependent children, parents and legally wedded wives, counting but not limited to a divorced spouse, mistress, illegitimate children, etc.

The right to claim maintenance is a right recognized under different laws in India, each one is different from other in main and another particular. The whole concept of maintenance was initiated in order to ensure that if there is a spouse who is not independent economically, then, the other spouse should help him/her in order to make the living of the other person possible. The maintenance may be in a gross sum or on periodical or monthly basis.

The income and property of the non-Applicant shall be considered while determining the permanent alimony. The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the instant needs of the petitioner. Both, the husband and wife, are entitled to claim maintenance according to the Hindu Marriage Act.

Laws that provide maintenance to wife:

Every law which provides for maintenance, except the Hindu Marriage Act, speaks about maintenance to the deserving wife alone. The laws which provide for maintenance to wife are:
  1. The Criminal Procedure Code, 1973 (Chapter IX: Sections 125 to 128)
  2. The Divorce Act, 1869 (Section 36 & 37)
  3. The Special Marriage Act, 1954 (Sections 36 & 37)
  4. The Muslim Women Protection on Divorce Act, 1986 (Section 4)
  5. The Protection of women from Domestic Violence Act, 2005 (Section 20)
  6. The Hindu Adoption and Maintenance Act, 1956 (Section 18)

Laws that provide maintenance to husband:

The only marriage law which upholds mutual obligation of both partners of a marriage - the husband and the wife - in the matter of providing maintenance is the Hindu Marriage Act, 1955. Sections 24 and 25 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The prerequisite is that the applicant does not have independent income which is sufficient for her or his support, during the pendency of the case.

The Hindu marriage Act, 1955 (Section 24 & 25)

Section 24 of Hindu Marriage Act, 1955 providing for maintenance pendente lite and expenses of proceedings states that where it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent.

The grant of maintenance pendente lite is allowed either from the date of original petition or from the date of service of summons on the other party or on the date on which the decision is taken. In fixing the amount the court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his maintenance. If the husband claims that he has no independent income for his support, it is for the wife to prove the contrary if what he claims is not true.

Section 25 of Hindu Marriage Act, 1955 providing for permanent alimony and maintenance states that the Court may on an application made to it by either the wife or the husband order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum having regard to the respondent's own income and other property, if any, the income and other property of the applicant.

A claim under Section 24 of the Act does not bar a claim under Section 25 of the Act, as each one is an independent right.

Agreement cannot prevent granting maintenance
In a mutual consent divorce under Section 13-B of the Hindu Marriage Act, even if the party agrees not to claim maintenance the court can still grant maintenance.  An agreement between parties cannot prevent a court from exercising its jurisdiction. The quantum of maintenance is decided on the facts and circumstances of each case but the amount so fixed should not be excessive or exorbitant in any case. Section 25 is a substantive provision.

Quantum of maintenance

Maintenance covers not merely food, clothing and shelter, but also includes other necessities. The quantum and type of necessities covered within the scope of maintenance may vary, depending on the status, financial position and number of dependents, etc. and is at the discretion of the court. Antecedent to passing an order under Section 125, the court does take cognizance of the amount of maintenance already ordered under the personal law. The reasoning is based on the premise that the wife is entitled to live as per the standard and status of her husband.

How is maintenance calculated?

There is no fixed formula or hard and fast rule for the calculation of alimony that the husband needs to provide to his wife. The maintenance can be provided as a periodical or monthly payment, or as a one-time payment in the form of a lump-sum amount.

If the maintenance is being paid on a monthly basis, the Supreme Court of India has set 25% of the husband's net monthly salary as the benchmark amount that should be granted to the wife. There is no such benchmark for one-time settlement, but usually, the amount ranges between 1/5th to 1/3rd of the husband's net worth.

Under Section 23 of the Hindu Marriage Act, it is in the discretion of the Court to determine whether any, and if so what maintenance should be awarded under the Act, in respect of the wife, children, aged or infirm parents, the Court will have regard to:
  1. the position and status of the parties;
  2. the reasonable wants of the claimant;
  3. if the claimant is living separately, whether he (or she) is justified in doing so;
  4. the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source; and
  5. the number of persons entitled to maintenance under the Act
The amount of maintenance, whether fixed by a Court's decree or by agreement, may be altered subsequently if there is a material change in the circumstance (Section 25). A person cannot claim maintenance under the Act if he or she has ceased to have a Hindu by conversion to another religion (Section 24).

Enforcement of orders of maintenance:

Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.

An application for execution of an Order of Maintenance can be filed under the following provisions:

  1. Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);
  2. Section 20(6) of the DV Act (before the Judicial Magistrate); and
  3. Section 128 of Cr.P.C. before the Magistrate's Court.
Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier. Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.

The Indian courts have been progressively liberal in deciding cases pertaining to maintenance. Maintenance law is a gender-equal law under the Hindu Marriage Act as it provides the right to Maintenance to both husband and wife. However, other laws only give this right to wives, and therefore, there have been petitions filed against other laws, such as Section 125 of CrPC in the Supreme Court, claiming it to be gender-biased.

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